Improving public procurement systems: the case of medical devices

The ANPHA report on ways to improve public procurement systems for health products aims to provide stakeholders with the key proposals needed to clarify and overhaul the legislative and regulatory framework for public procurement, with a view to making the purchase of health products — including medical devices in hospitals — more efficient.

Expressing needs is an important and mandatory step in the purchasing process, given their specific nature. Both the definition of needs and the acquisition of medical devices and healthcare equipment are subject to specific regulatory provisions that directly affect how purchasing rules are applied, in terms of the products themselves, their final quantities and the time it takes to meet requesters' needs.

One of the basic provisions is to allow — as many foreign legislations do — the identification of reference products for the need to be met, with the obligation to accept the examination of products with equivalent specifications, provided that the name used is followed by the words "or equivalent". In this case, any such reference covers services with equivalent characteristics whose performance and quality are at least equal to those required in the specifications. This measure ensures equal treatment of bidders.

From a purely legislative standpoint, Law No. 23-12 of 5 August 2023 setting out the general rules for public procurement provides, for so-called common purchases, the possibility of using contractual instruments designed for repetitive and unpredictable needs: framework order contracts, programme contracts and group purchasing. These instruments suit both repetitive purchases and purchases with homogeneous needs. However, the law in force does not offer sufficient legal certainty, particularly regarding its implementation.

Drafting the implementing decree for Law No. 23-12 could be an opportunity to give these tools a broader application mechanism. The envisaged provision would also allow regulations to be genuinely adapted to the healthcare sector, whose product needs are often unpredictable and call for responsiveness in meeting patients' needs.

To this end, measures could be considered, such as generalising the use of standard specifications — to avoid the recurring review of specifications by the procurement committee and achieve significant time savings in tendering procedures — or setting up two bid evaluation committees that would simultaneously analyse, one the technical offer and the other the financial offer. This measure aims to save time on bid evaluation, considered the longest stage of the procurement process.

Furthermore, to take advantage of the clear benefits of technical progress, integrating technological innovation as a lever for rationalising public spending is essential. Taking technological innovation into account in public procurement is a priority for the continuous improvement of public services and the optimisation of public spending. One example is support for certified start-ups in the digital and innovation fields, since Law No. 23-12 provides an advantage for certified start-ups providing services in the digital and innovation sectors […]